Vipin and Vinesh v. State of Kerala (Bail Application No. 5720 of 2024)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946 ``` ``` BAIL APPL. NO. 5720 OF 2024 ``` ``` CRIME NO.679/2024 OF VADAKKANCHERRY POLICE STATION, PALAKKAD ``` ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1VIPIN AGED 42 YEARS S/O.LATE.VELU, KOZHUKULLY HOUSE, ELAVAMPADAM.P.O, KIZHAKKENCHERRY, ALATHUR, PALAKKAD, PIN - 678684 ``` - **`2 VINESH@ KOYAN AGED 33 YEARS`** ``` S/O.LATE.VELU, KOZHUKULLY HOUSE, ELAVAMPADAM.P.O, KIZHAKKENCHERRY, ALATHUR, PALAKKAD, PIN - 678684 ``` ## **`BY ADV V.A.JOHNSON (VARIKKAPPALLIL)`** ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SRI C S HRITHWIK SENIOR PUBLIC PROSECUTOR ``` ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 22.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.5720 of 2024** **`2`** ## **Dated this the 22[nd] day of July, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.679/2024 of the Vadakkancherry Police Station, Palakkad, which is registered against them for allegedly committing the offences punishable under Sections 452, 323, 326 & 506 read with Section 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioners had surrendered before the Investigatiing Officer on 04.07.2024. 2. The gist of the prosecution case is that; on 22.05.2024, at around 19.30 hours, the accused, in furtherance of their common intention, trespassed into the house of the de facto complainant and attacked the de facto complainant with a wooden stick, and he suffered a fracture on the middle finger of his left hand. **B.A. No.5720 of 2024** **`3`** The third accused threatened the de facto complainant that he would do away with his life. Thus, the accused have committed the above offences. 3. Heard; Sri. V.A. Johnson (Varikkappallil), the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There is no material to substantiate the petitioners’ involvement in the case. In fact, the petitioners had filed B.A.No. 4548/2024 before this Court for an order of pre-arrest bail, and by Annexure A2 order, the same was dismissed. Pursuant to the said order, the petitioners surrendered before the Investigating Officer on 04.07.2024. Even though the petitioners moved an application before the Jurisdictional Magistrate, the same was dismissed by Annexure A3 order. The petitioners have been in judicial custody for the last 20 days, the investigation in the case **B.A. No.5720 of 2024** **`4`** is practically complete, and recovery has been effected. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation in the case is in progress. He also submitted that there are incriminating materials to substantiate the petitioners’ involvement in the crime. The defacto complainant had suffered a fracture on the middle finger of his left hand, which was already observed by this Court in Annexure A2 order. If the petitioners are released on bail, there is a likelihood of them intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. 6. The prosecution allegation is that, the petitioner, in furtherance of their common intention, had hit the defacto complainant with wooden sticks and he suffered a fracture on his middle finger. Indisputably, the petitioners had approached this Court for an order of pre-arrest bail, and the same was dismissed by Annexure **B.A. No.5720 of 2024** **`5`** A2 order. Pursuant to the said order, the petitioners surrendered before the Investigating Officer. The fact remains that the petitioners have been in judicial custody for the last 20 days, the investigation in the case is practically complete, and recovery has been effected. Furthermore, the petitioners are persons without any criminal antecedents. 7. In **Sanjay Chandra v. CBI** [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence, until a person is found guilty. Any imprisonment prior to conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 8. In **State of Kerala v. Raneef** [(2011) 1 SCC 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay **B.A. No.5720 of 2024** **`6`** in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 9. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. The right to bail cannot be denied merely due to the sentiments of the society. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioners have been in judicial custody for the last 20 days, the investigation in the case is practically complete, and recovery has been effected, I am of the definite view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. In the result, the application is allowed by directing the petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each ## **B.A. No.5720 of 2024** **`7`** with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: - (i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required; - (ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii) The petitioners shall not commit any offence while they are on bail; - (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond; - (v) In case of violation of any of the conditions **B.A. No.5720 of 2024** **`8`** mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (vii)Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and Another** [2020 (1) KHC 663]. ## **SD/-** ## **C.S.DIAS, JUDGE** mtk/22.07.2024